Can Police Conduct a DNA Test After a Las Vegas Arrest?
A Nevada statute governs the ability of law enforcement to collect a DNA sample after an arrest. Under the law, police must conduct a DNA test after a Las Vegas arrest in specific circumstances.
Required DNA Tests After a Las Vegas Arrest
On May 30, 2013, the Nevada Governor signed a new law including complex provisions relating to DNA testing. Specific sections relate to DNA testing after arrest and conviction.
The following week, on June 3, 2013, the United States Supreme Court upheld a similar Maryland law and ruled that police can take DNA samples from arrested persons. That decision quelled any lingering questions about validity of the new Nevada law, which went into effect on July 1, 2014.
The Nevada law sometimes referred to as Brianna’s Law. Brianna Denison was a young college student raped and murdered in Reno in 2008. Her death was a major catalyst behind Nevada’s passage of the law.
Cheek Swabs Required For Felony Arrests
The Nevada statute requires a police officer to take a DNA sample using a cheek swab from any person arrested for a felony, either with or without a warrant. The law requires the officer to take the sample before releasing the person from custody.
For an arrest with a warrant, the officer submits the sample to a forensic laboratory after taking it. For an arrest without a warrant, the officer sends the sample to the lab after receiving notice that a court or magistrate determined that probable cause existed for the arrest. If the court or magistrate determines that probable cause did not exist for the arrest, the officer must destroy the specimen within five (5) days after receiving notice.
If a police officer does not take a DNA sample after a felony arrest, the law requires the court or magistrate to require the person to provide a DNA specimen before setting bail or releasing the person on his or her own recognizance. It also authorizes the district attorney or Attorney General to petition the district court to require a person to provide a cheek swab or provide the specimen through other means if the person will not cooperate.
DNA Collection for Conviction of Specific Offenses
The law also requires collection of DNA specimens for conviction of specific offenses, including:
- A crime against a child
- Sexual offenses
- Abuse or neglect of an older or vulnerable person
- Attempt or conspiracy to commit any of the foregoing offenses
- Second or subsequent offense for stalking
- Failure to register with law enforcement as required by law
Collection of DNA Samples from Nevada Inmates
In 2016, the Nevada Attorney General issued an opinion requiring collection of DNA specimens from inmates in state custody for felony convictions, regardless of when the inmate’s conviction occurred.
Nevada DNA Records
After the forensic laboratory completes DNA analysis, the lab notifies the Central Repository for Nevada Records of Criminal History that the laboratory created a DNA profile for the person. The repository notes collection of the specimen and creation of the profile on the person’s record.
The lab then submits the person’s DNA profile for inclusion in the Nevada DNA Database and CODIS, the FBI’s Combined DNA Index System, which allows for the storage and exchange of DNA records submitted by federal, state, and local forensic DNA laboratories.
Expungement of Nevada DNA Records
The law requires destruction of DNA samples and records when a person is not convicted of the crime that resulted in collection of the specimen. In addition, the statute allows a person to submit a written request to the Central Repository for expungement of a DNA record resulting from a felony arrest under the following circumstances:
- Reversal of the conviction and dismissal of the case
- Dismissal of the felony charge
- Successful completion of a pre-prosecution diversion program
- Conditional discharge
- Acquittal
- Plea agreement involving a non-felony charge
- Passage of three (3) years of the original date of arrest with no additional felony charges
Those not eligible for DNA expungement include a person who:
- Has a present or past duty to register as a sex offender
- Provided a DNA sample as part of a plea bargain
- Provided a DNA sample after conviction for a misdemeanor and had a past felony conviction at that time
- Has a past or present criminal offense on his or her record that qualifies for inclusion in the DNA data base
In addition, successfully sealing a criminal record in Nevada does not entitle the person to automatic destruction and purging of the DNA profile and record.
The laboratory will not destroy a DNA profile and record if law enforcement notifies the lab that the person has a prior felony, a new felony arrest, or a pending felony charge for which the statute authorizes collection of a biological specimen.
If a request for expungement meets all the statutory requirements, the lab destroys the sample and the Central Repository ensures purging of DNA profile and record from all databases.
Other Provisions in the Nevada DNA Testing Statute
The Nevada DNA law also includes provisions relating to collection of specimens from probationers and parolees, as well as complex provisions concerning post-conviction petitions relating to DNA specimens and genetic marker analysis.
Talk With a Trusted Las Vegas Criminal Defense Attorney About Nevada DNA Testing and Records
If you have questions about a DNA test after a Las Vegas arrest or post-conviction, Attorney Joseph Gersten has the knowledge and experience to answer all your questions and provide necessary assistance. The Gersten Law Firm represents clients in Las Vegas and throughout Clark County. Contact us to schedule your free consultation.
